In order to understand the sheer hypocrisy of George Bush’s decision to commute Scooter Libby’s sentence so that he serves not one moment of jail time, one must understand the vast amount of people whom George W. Bush sent to their deaths as governor of Texas.

In his five years as governor of Texas, the state has executed 131 prisoners — far more than any other state. Mr. Bush has lately granted a stay of execution for the first time, for a DNA test.

In answer to questions about that record, Governor Bush has repeatedly said that he has no qualms. “I’m confident,” he said last February, “that every person that has been put to death in Texas under my watch has been guilty of the crime charged, and has had full access to the courts.”

That defense of the record ignores many notorious examples of unfairness in Texas death penalty cases. Lawyers have been under the influence of cocaine during the trial, or been drunk or asleep. One court dismissed a complaint about a lawyer who slept through a trial with the comment that courts are not “obligated to either constantly monitor trial counsel’s wakefulness or endeavor to wake counsel should he fall asleep.”

This past week The Chicago Tribune published a compelling report on an investigation of all 131 death cases in Governor Bush’s time. It made chilling reading.

In one-third of those cases, the report showed, the lawyer who represented the death penalty defendant at trial or on appeal had been or was later disbarred or otherwise sanctioned. In 40 cases the lawyers presented no evidence at all or only one witness at the sentencing phase of the trial.

In 29 cases, the prosecution used testimony from a psychiatrist who — based on a hypothetical question about the defendant’s past — predicted he would commit future violence. Most of those psychiatrists testified without having examined the defendant: a practice condemned professionally as unethical.

Other witnesses included one who was temporarily released from a psychiatric ward to testify, a pathologist who had admitted faking autopsies and a judge who had been reprimanded for lying about his credentials.

Asked about the Tribune study, Governor Bush said, “We’ve adequately answered innocence or guilt” in every case. The defendants, he said, “had full access to a fair trial.”

Indeed, Scooter Libby also had access to a fair trial. But that trial did not come to the conclusion that George Bush wanted, so he dismissed the verdict and commuted the sentence of a man who had well heeled, expensive legal defense team–much more than just “full access to the courts”.

Most of the inmates executed under George Bush’s tenure as governor were black, but this almost goes without saying. But among the executed are also those who suffered from mental illness, a factor not as influential in granting them clemency as being a friend of the president.

On the morning of May 6, 1997, Governor George W. Bush signed his name to a confidential three-page memorandum from his legal counsel, Alberto R. Gonzales, and placed a bold black check mark next to a single word: DENY. It was the twenty-ninth time a death-row inmate’s plea for clemency had been denied in the twenty-eight months since Bush had been sworn in. In this case Bush’s signature led, shortly after 6:00 P.M. on the very same day, to the execution of Terry Washington, a mentally retarded thirty-three-year-old man with the communication skills of a seven-year-old.

During Bush’s six years as governor 150 men and two women were executed in Texas—a record unmatched by any other governor in modern American history. Each time a person was sentenced to death, Bush received from his legal counsel a document summarizing the facts of the case, usually on the morning of the day scheduled for the execution, and was then briefed on those facts by his counsel; based on this information Bush allowed the execution to proceed in all cases but one.


Although the summaries rarely make a recommendation for or against execution, many have a clear prosecutorial bias, and all seem to assume that if an appeals court rejected one or another of a defendant’s claims, there is no conceivable rationale for the governor to revisit that claim. This assumption ignores one of the most basic reasons for clemency: the fact that the justice system makes mistakes.

A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.

Of no small consequence to me is the fact that among the 150 people executed with little concern to the former Governor of Texas, most of them are black. If you had to kill someone in Texas when George W. Bush was governor, killing a black person probably wouldn’t get you killed. You’d have to kill a white person for that kind of treatment.

Race was found to be a pervasive influence on how capital punishment is administered. The study concluded that prosecutors were far more likely to pursue the death penalty when the victim was white as opposed to black. Blacks and Hispanics often are likely to be excluded from capital juries. The result, the report said, is that black Texans are “least likely to serve on capital juries, but the most likely to be condemned to die.”

The Administrations’ disrespect for the Constitution of the United States, and its belief and practice that both its rights and its laws should be selectively protected or enforced based on race, class or personal ties to those in power is among the many legacies that George W. Bush has made for himself.

I’m sure it’s not the one he had in mind.

Scooter is lucky he isn’t black. Under those circumstances, Bush might have just asked Alberto Gonzales for one of his “clemency” briefings.

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